[1991] OLRB Rep. July 922
2438-90-R National Automobile, Aerospace and Agricultural Implement Workers Union of Canada (CAW-Canada), Applicant v. Toyota Canada Inc., Respondent
BEFORE: M. A. Nairn, Vice-Chair, and Board Members J. A. Ronson and C. McDonald.
APPEARANCES: Craig Grant and Hassan Yussuff for the applicant; W. S. Cook and Peter G. Bond for the respondent.
DECISION OF: M. A. NAIRN, VICE-CHAIR, AND BOARD MEMBER C. MCDONALD; July 15, 1991
This is an application for certification wherein the applicant requested that a pre-hearing representation vote be taken. By decision of the Board dated January 10, 1991, a vote was ordered and subsequently taken. The ballot box was sealed and the ballots not counted pending determination of a number of issues in dispute between the parties. A hearing was convened before this panel to deal with those outstanding matters.
The Board finds that the applicant is a trade union within the meaning of section l(l)(p) of the Labour Relations Act (the "Act").
The applicant challenged a number of individuals on the list of employees submitted by the employer. The parties were however able to resolve a number of those challenges at the outset of the hearing. The parties are agreed that K. Boodoo, S. Hegazy, W. Richards, P. Ryan, N. Scanga, and M. Sutton are employees properly included in the bargaining unit. The parties are further agreed that J. Defede, K. Gosien, M. Houston, B. Pardasie, and J. Skinner were not properly on the list of employees and are excluded from the bargaining unit.
The applicant withdrew its challenge that N. Holder and A. Rains were not employees of the respondent. However it maintained its position with respect to the bargaining unit description issue outlined below in paragraph 7, that these two individuals would otherwise be excluded from the bargaining unit.
S. The parties are agreed that Diane Kroontze falls within the office and sales staff exclusion from the bargaining unit and therefore any ballot cast by Ms. Kroontze is not to be counted.
The parties remained in dispute with respect to whether Mr. S. Senter was an employee within the bargaining unit. The respondent takes the position that Mr. Senter shares a community of interest with the employees in the bargaining unit applied for. The applicant takes the position that Mr. Senter shares a community of interest with the employees that fall within the office and sales staff exclusion from the bargaining unit.
The other issue in dispute was the geographic scope of the bargaining unit description. As set out in the Board's decision of January 10, 1991, it is the position of the applicant that the bargaining unit should consist of employees situate at the location identified as 1291 Bellamy Road NorthI83O Progress Boulevard ("Bellamy/Progress"). The respondent takes the position that the bargaining unit should be described as including those employees within the Municipality of Metropolitan Toronto. The respondent operates at three other locations within that geographic area. Subject to the geographic scope of that bargaining unit, the parties are agreed that all employees of the respondent, save and except supervisors, office and sales staff, persons regularly employed for not more than twenty-four (24) hours per week and students employed during the school vacation period constitute a unit of employees of the respondent appropriate for collective bargaining.
The panel heard the parties' evidence and submissions with respect to these outstanding issues. The bargaining unit applied for by the applicant comprises two street addresses; the Bellamy Road North ("Bellamy") address is used in referring to the respondent's head office. The Progress Boulevard ("Progress") address is the address used to refer to the respondent's parts distribution warehouse. Both these addresses are physically situate together on the corner of Bellamy Road North and Progress Boulevard in the City of Scarborough.
The Bellamy location houses the national head office of Toyota Canada Inc. It provides centralized financial/accounting and administrative services for the respondent. All parts and vehicles sold and/or distributed by the respondent are ordered from the head office location. Operational and administrative policies, including Human Resource policies are determined through the head office.
Adjacent to the head office is the parts warehouse situate on Progress Boulevard. It houses vehicle parts for shipment to dealers in Ontario and those east of Ontario. It houses 'slow moving' parts for shipment across Canada and receives and distributes fork-lift parts across the country. The operation involves receiving, storing, picking and packing of parts based on dealers' orders and shipment to them. At Progress there is also a repair and testing function. Broken parts shipped into the warehouse from dealers are handled and shipped out to repair centers. Upon their return they are shelved and/or shipped to dealers on an order basis. This would include, for example, starter motors or alternators.
11, The three other locations which the respondent seeks to include in the bargaining unit description are 411 Nugget Avenue, 410 Passmore Avenue and what has been referred to as the Nashdene Yard. All of these locations are situate within the City of Scarborough.
The employees at the Nugget Ave. location were moved there in August of 1990. Certain space at the Bellamy/Progress location is in the process of being converted to office and technical space. That construction is due to finish in June of 1991. During the period of construction (a period of approximately ten months) the respondent leased space at Nugget Avenue in order to continue the operations of the employees involved. Upon completion of the construction these individuals will return to the Bellamy/Progress location.
At the Passmore location there is only one employee. That person is classified as a warehouseperson. The work at Passmore was relocated approximately two years ago from Bellamy due to space problems. It comprises the industrial equipment division of the respondent and involves the shipping and receiving of fork-lift trucks. The warehouseperson picks up parts on a fairly regular basis from the warehouse at Progress.
The Nashdene yard is the respondent's vehicle distribution location. Vehicles that have been ordered are shipped to Nashdene from where they will be shipped to car dealers within Ontario. The respondent maintains a facility not unlike a body shop on site where three painter/bodymen and one sander are employed to repair any damage done to the vehicles en route from Vancouver to Toronto. In addition there is one individual employed as a yardman who is responsible for moving the vehicles off the trains and in the yard. These individuals report to the Vehicle Warehouse Operations Manager who is located at Nashdene.
All of these locations are connected by way of telephone and computer system. There is no evidence of any interchange of employees between the locations.
Mr. Senter is employed in the classification Maintenance person/Administration. He handles minor repairs at Bellamy although occasionally he is called upon to do small repairs in the warehouse at Progress Boulevard. He also inspects company driven cars for damage, maintains records with respect to these vehicles and he would, for example, change the license plates as required. The respondent acknowledged that Mr. Senter generally works in the office performing functions such as moving desks or stationery and performing small maintenance tasks.
In determining the appropriate bargaining unit in this case we have taken into account the remarks in Hospital for Sick Children, [1985] OLRB Rep. Feb. 266 at paragraph 17:
…..what then is the purpose of the concept of the "appropriate bargaining unit"? Quite simply, it is an effort to inject a public policy component into the initial shaping of the collective bargaining structure, so as to encourage the practice and procedure of collective bargaining and enhance the likelihood of a more viable and harmonious collective bargaining relationship. That objective is spelled out clearly in the Preamble to the Act. While the requisites for effective collective bargaining cannot always be defined with certainty, may necessitate a balance of competing collective bargaining values, and may, in any event, turn on factors beyond the Board's control, the discretion to frame the "appropriate" bargaining unit during the initial organizing phase provides the Board with an opportunity (albeit perhaps a limited one) to avoid subsequent labour relations problems. Now, of course, this is not necessarily the same thing as minimizing administrative problems for the employer or organizing problems for the union. The structures and policies that promote a maximization of the employer's business interests are not those that will necessarily describe a viable bargaining unit, or the only viable bargaining unit -particularly since those interests may include a desire to avoid collective bargaining altogether, or limit its effectiveness. The employer's administrative structures are relevant in determining the bargaining unit, but they are not necessarily to be taken as the conclusive blue print in deciding what is appropriate. Nor is it a matter of simply giving an applicant union what it wants. It is, as we have noted, a matter of balancing competing considerations, including such factors as: whether the employees have a community of interest having regard to the nature of the work performed, the conditions of employment, and their skills; the employer's administrative structures; the geographic circumstances; the employees' functional coherence, or interdependence or interchange with other employees; the centralization of management authority; the economic advantages to the employer of one unit versus another; the source of work; the right of employees to a measure of self-determination; the degree of employee organization and whether a proposed unit would impede such organization; any likely adverse effects to the parties and the public that might flow from a proposed unit, or from fragmentation of employees into several units, and so on.
- Further at paragraph 23 of that decision the Board summarizes the nature of the issue at hand:
….Does the unit which the union seeks to represent encompass a group of employees with a sufficiently coherent community of interest that they can bargain together on a viable basis without at the same time causing serious labour relations problems for the employer.
In dealing with the more specific question of the geographic scope of the bargaining unit and the considerations which apply, we refer to some earlier comments of the Board in K-Mart Canada Limited, [1981] OLRB Rep. Sept. 12S0:
Although the Board must be sensitive to the impact of its bargaining unit determinations upon the ability of trade union's [sic] to organize, there are other factors which must also be taken into account. The objectives of the statute relate not only to the promotion of collective bargaining as a means of determining terms and conditions of employment, but also to a recognition of the principle of individual freedom of choice, and to the creation and maintenance of sound and viable bargaining structures. In determining the appropriate bargaining unit the Board does not give effect to one of these aims to the exclusion of the others. Rather, the task which falls to the Board in the exercise of its discretion under section 6(1) of the Act requires a balancing of these statutory objectives in the circumstances of each case....
Nowhere is the balancing of the statutory objectives more evident than in the Board's normal practice of circumscribing the geographic scope of bargaining rights by reference to the municipal boundary within which the employer operates. Where there is only one location within a municipality the Board will define the unit in terms of all employees within the municipality. Under a regime of municipal-wide certification bargaining rights follow an expansion or relocation of the business within the municipality; but not beyond. The freedom of choice of employees to make the initial selection of a bargaining agent at future sites within the municipality is sacrificed in favour of the stability of the bargaining rights conferred by the certificate. However, these rights do not extent [sic] beyond the municipality in deference to the right of employees at new locations outside the municipality to select a bargaining agent of their choice. The use of the municipal boundary represents an attempt by the Board to strike a rough balance between stable bargaining structures and individual freedom of choice.
Where the employer operates at two or more locations within a municipality at the time of certification a number of other considerations come to the fore which must be taken into account by the Board. Because the operations are in existence the Board is able to make a first hand assessment of the community of interest between the employees at the two locations....
... There are other important considerations which enter the picture as well where the employer operates from two or more locations within the same municipality. Where it is raised as an issue the Board must consider the effect of a broader based unit upon employee access to collective bargaining within the industry. In addition, the Board must recognize the wishes of the employees affected by the particular application to bargain collectively. This latter consideration requires the Board to take into account the pattern or organization in the case before it and to balance the pattern of organization against the disruptive effects of excessive fragmentation. The potential for fragmentation takes on an added weight where the Tribunal lacks the authority to restructure existing bargaining units at some future date. The nature of the deliberations which are undertaken by the Board in determining the appropriate bargaining unit where the employer operates from two or more locations within the municipality are summarized in the following passage from the Board's Ponderosa Steakhouse decision:
"The determination of what constitutes a viable collective bargaining structure requires the Board to consider matters of industrial relations policy, such as community of interest and fragmentation of employees. Community of interest may be a requisite for viable collective bargaining, since the representation of disparate employee groups by one bargaining agent may put impossible strains upon it as it performs its role in the bargaining process. At the other extreme, a too narrow definition of community of interest may create undue fragmentation of employees, leading to a weak employee presence at the bargaining table, or the possibility of jurisdictional disputes among competing bargaining groups. It should be observed, however, that the Act does not create any presumption in favour of the most comprehensive unit of employees, even though these employees may have a community of interest. Section 1(l)(b) of the Act states that: "'bargaining unit' means a unit of employees appropriate for collective bargaining, whether it is an employer unit or a plant unit or a subdivision of either of them".
This provision makes it quite clear that the determination of appropriateness does not always lead to the conclusion that the most comprehensive unit is also the most appropriate unit. Consideration of the wishes of employees, and of industrial relations policy, may very well dictate that a smaller bargaining unit is the appropriate unit. This point was clearly made in Board of Education for the City of Toronto case, supra."
- ... The balance which has been struck by the Board in the circumstances of these cases has been aptly described in the following passage from the Canada Trustco decision, supra,
"In determining the appropriate bargaining unit the Board cannot disregard the labour relations realities before it. When a group of employees signify that they wish to exercise their right to bargain collectively, and that grouping is seen by the Board as sufficiently conforming to the Board's criteria of appropriateness as a bargaining unit, this Board should not require bargaining in a more comprehensive unit if to do so would effectively impede the access of that group of employees to any collective bargaining at all."
18.... Viability for purposes of collective bargaining, on an application of community of interest principles and a consideration of the effect of fragmentation, remains a prerequisite for a finding of appropriateness. However, the Board recognizes that there may be more than one appropriate unit in any given case. Where there is more than one appropriate unit the Board will attempt to accommodate the desire of the employees on whose behalf the application has been filed to bargain collectively...
Both parties also referred the panel to the Board's decision in Usarco Limited, [1967] OLRB Rep. Sept. 526 which sets out the factors that the Board generally considers in determining whether a community of interest exists between employees.
The difficulties that are presented in assessing the appropriateness of a bargaining unit configuration where an employer operates out of more than one location within a municipality are highlighted by comparing two Board decisions. In Magna International Inc. [1981] OLRB Rep. Sept. 1260 the Board found three separate bargaining units to be appropriate in circumstances where the employer operated three plants within a municipality, while in Mobile Chemical Canada, Ltd., [1987] OLRB Rep. Apr. 559 the Board found one bargaining unit covering two plants to be appropriate in circumstances there.
In Mobile Chemical, supra., the Board refers to and comments on Magna International, supra., as follows:
12.... Where an employer carries on business at more than one plant within a municipality, the Board's general practice is to describe separate bargaining units for employees at each plant. However, the Board will depart from that general practice if the operations are integrated and the employees share a sufficient community of interest: Faber-Castell Canada Limited, [1986] OLRB Rep. Apr. 449. In Magna International Inc., [1981] OLRB Rep. Sept. 1260, the then Chairman of the Board wrote, in part, as follows concerning the approach which the Board has generally adopted in such cases:
Section 6(1) of The Labour Relations Act charges the Board with the responsibility of determining "the unit of employees that is appropriate for collective bargaining." The Act, however, does not furnish precise criteria of "appropriateness." Consequently, the Board has developed certain broad policy guidelines which attempt to balance the right of self-organization guaranteed in section 3 of the Act with the requirements of a viable collective bargaining relationship. There is no lack of cases where the Board has had to choose between single plant or location bargaining units and multi plant or location bargaining units in trying to strike this balance. Generally, unions will advocate the former (since, although they may be more difficult to service, they are generally easier to organize) while employers will generally advocate the latter (since they are generally more difficult to organize but also because larger bargaining units present the employer with a more easily administered and potentially less disruptive collective bargaining relationship)...
In determining the appropriateness of bargaining units which include employees at more than one location the Board has outlined certain fundamental criteria as in Usarco Ltd., [1967] OLRB Rep. Sept. 526. (For an excellent and recent review of this see K-Mart Canada Ltd., [1981] OLRB Rep. Sept. 1250). The criteria are: (1) community of interest of the employees; (2) centralization of managerial authority; (3) economic factors; and (4) source of work. The first criterion has been subdivided further to include: the nature of work performed, the conditions of employment, the skills of employees, administration, geographic circumstances, and functional coherence and interdependence. It has been pointed out on numerous occasions that the factors are obviously interdependent and that all factors do not take on the same weight in any given case. Moreover, they must be considered in light of the purpose of the Act which is to facilitate employee access to collective bargaining. The Board has been careful to avoid an overly technical or rational process to collective bargaining structures in order not to frustrate employee wishes...
The Board then concludes on the facts in Mobile Chemical that:
Having regard to the criteria and labour relations policy considerations set forth in that jurisprudence, we have concluded that there is a substantial community of interest among the employees at the aforementioned two plants, and that to separate the employees at the Plastics plant from the employees at the Films plant, as requested by the applicant, would result in undue fragmentation of the respondent's work force, thereby creating a situation which would not be conducive to viable collective bargaining. In reaching that conclusion, we have taken into consideration a number of factors. As indicated above, employees at both plants use similar skills to perform similar work in plants only a few hundred metres apart, which both convert plastic resin pellets into plastic packaging material. An identical wage structure applies to employees at both plants and they all receive the same benefits. Other conditions of employment, such as the aforementioned mix of seven-day rotating operations and five-day rotating operations, are also common to both plants. Although each plant has its own manager and supervisors, there is a single personnel department which approves all hires, discharges, disciplinary actions, promotions, demotions, and appraisals. The fact that job openings in each of the two plants are posted in both plants further evidences their functional coherence and interdependence. The granting of a bargaining unit confined to employees at the Plastics plant, with the obvious potential for a further (production) bargaining unit at the Films plant, could hinder transfers, postings, and promotions between the two locations. It might also give rise to industrial relations problems in the event that the respondent wished to continue to permit maintenance employees from the Plastics plant to go to the Films plant to use various equipment at that plant. The use of the aforementioned group of temporary employees to perform specific tasks at the two plants from time to time might also be hampered by such a bargaining unit configuration. As indicated above, in exercising its power under section 6(1) of the Act to determine the unit of employees that is appropriate for collective bargaining, the Board considers the effect of a broader based unit upon employee access to collective bargaining in the industry to which the application pertains: see, for example, K-Mart Canada Limited, [1981] OLRB Rep. Sept. 1250. In the instant case, the applicant has confined its organizational activities to employees in the Plastics plant, and has not. attempted to organize the Films plant. However, having regard to all of the circumstances, including the extent to which the chemical industry has already been organized in Ontario, the Board does not consider that the larger unit proposed by the respondent in the circumstances of this case would significantly impede employee access to collective bargaining. In reaching this conclusion, we have balanced the interests of those employees who have signified their desire to bargain collectively and be represented by the applicant, the substantial community of interest shared by those employees and the employees of the respondent at its Films plant, and the potential for undue fragmentation which would be created by confining the bargaining unit to the Plastics plant. Our balancing of all of those interests in the circumstances of the present case has led us to conclude that the Plastics plant should not comprise a bargaining unit separate from the Films plant.
In the instant case there is little doubt that a bargaining unit described to include those employees at Bellamy/Progress is appropriate. What then argues for a more comprehensive unit? Certainly a bargaining unit encompassing all locations within the municipality may also be appropriate. What can be said when reviewing those factors discussed both in Magna International, supra., and Mobile Chemical, supra. in light of the comments in Hospital for Sick Children, supra.? We have insufficient evidence to draw useful conclusions with respect to the centralization of managerial authority although employees at each location report to different local supervision. A more comprehensive bargaining unit would clearly be administratively more convenient for the employer. We are not persuaded that a multiplicity of bargaining units would necessarily have adverse consequences for future bargaining. The sources of the work between Bellamy/Progress, Passmore, and Nashdene are distinct. The nature of the warehousing and distribution work performed by employees at the various locations is similar, although certain of the other functions are not, for example, the "body shop" at Nashdene. To that same extent the skills of the employees vary. The terms of employment and working conditions are similar at all locations. The employer's structure, at least in terms of human resource policy development and administration is centralized.
Obviously there is a certain level of coherence between the locations simply given the fact that the functions being performed are for the enhancement of the respondent's overall operation. However, the Nashdene and Passmore locations are not functionally integrated with the parts warehouse except to the extent that the warehouseperson at Passmore will pick up parts from Bellamy/Progress. There is no evidence of any interchange of employees between any of the locations. Unlike the employees in Mobile Chemical, supra., and similarly to the employees at Magna International, supra., employees here do not appear to transfer between jobs at the various locations.
We are not satisfied that the scope of the bargaining unit ought to include employees at the Nashdene and Passmore locations. The applicant does not seek to represent these employees nor does it appear that by excluding them from the bargaining unit will the employer be presented with serious labour relations problems. The thrust of the respondent's submission was directed at its own administrative convenience. From a labour relations point of view while it may well be more convenient to deal with employees at these various locations within one larger bargaining unit, that is not, as was pointed out in Hospital for Sick Children, supra, determinative of the issue of the appropriate bargaining unit. On balance we are satisfied that the Nashdene and Passmore locations are sufficiently distinct particularly in light of no evidence of any interchange of employees, to conclude that the scope of the bargaining unit proposed by the applicant (subject further to what we will say with respect to the employees at Nugget Ave.) is appropriate.
The facts applying to the Nugget Ave. location are slightly different. However, for reasons similar to those with respect to the Passmore and Nashdene locations, we are not persuaded that the scope of the bargaining unit ought to include reference to it. It is a temporary location. Upon the return of the employees to the Bellamy/Progress location, they will fall within the bargaining unit proposed by the applicant, subject to any other exclusions. If the employees were not to return to Bellamy/Progress, based on the evidence before us, there appears to be no greater community of interest between these employees and the employees at Bellamy/Progress than with employees at the other locations and Bellamy/Progress.
Having regard to the partial agreement of the parties and to the findings of the Board with respect to the appropriate bargaining unit we find that:
all employees of the respondent at 1291 Bellamy Road NorthI83O Progress Boulevard in the City of Scarborough, save and except supervisors, persons above the rank of supervisor, office and sales staff, persons regularly employed for not more than twenty-four (24) hours per week and students employed during the school vacation period,
constitute a unit of employees of the respondent appropriate for collective bargaining.
Based on the limited evidence we received with respect to the work performed by Mr. Senter, we find that he more properly falls within the office and sales staff exclusion from the bargaining unit. His daily functions are more closely associated with the operation of the office. While he is employed in the classification of maintenance person, his title indicates he reports to the Administrative Services side of the respondent's operation.
Further to the Board's decision of April 24, 1991 the panel has been advised by the parties that there is no objection to the sufficiency of the Form 9 filed by the applicant.
The Board is satisfied that not less than thirty-five percent of the employees of the respondent in the bargaining unit were members of the applicant at the time the application was made.
Pursuant to section 9(4) of the Act the ballots cast by employees in the bargaining unit on the application date may now be counted.
This matter is referred to the Manager of Field Services in order that arrangements can be made with the parties for the counting of the ballots.
DECISION OF BOARD MEMBER J.A. RONSON; July 15, 1991
- Board Member Ronson dissents from this decsion with reasons to follow.